Ontario judge slams ‘Dark Ages’ court system

An Ontario Superior Court judge made some interesting remarks on the proportionality rule, lawyers’ fees, and the courts’ stone-age approach to technology last week.

Ruling in Harris v. Leikin Group, Justice David Brown considered the cost motion of one of the defendants, First Capital Realty Inc., following its successful bid for summary judgment. The case centred on a bid process for College Square in Ottawa. The plaintiffs alleged the bid process was a sham and took several parties, including First Capital, to court.

Brown ruled there was no basis for the claim against First Capital, which sought $437,000 in costs, including $333,000 in fees and $62,000 in disbursements. The plaintiffs responded with several criticisms:

1. First Capital wasn’t entitled to costs for participating in four unsuccessful summary judgment motions by the other defendants.

2. The hourly rates claimed by First Capital’s lawyers were too high.

3. Counsel for First Capital spent too much time on certain steps.

4. First Capital’s costs would violate the principle of proportionality because they’d amount to more than 50 per cent of the substantial indemnity costs of $709,000 incurred by the plaintiffs in defending all five summary judgment motions.

But perhaps the most interesting aspect of Brown’s decision is his analysis of First Capital’s claim for $30,000 in disbursements for electronic document production and database management.

While the plaintiffs didn’t oppose recovery, Brown carefully considered the fees in light of the court’s direction that lawyers follow the Sedona Canada principles for e-discovery. He accepted them but then engaged in a fairly harsh diatribe about the court’s seemingly hypocritical stance in ordering parties to use the Sedona principles in relation to e-discovery when they themselves can’t accept electronic documents.

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Source: canadianlawyermag.com
By: Glen Kauth